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Judgment
,
Rule, with the consent of the learned counsel for the parties made returnable forthwith and heard.",
This Writ Petition is filed for the following substantial relief :-,
(a) this Hon’ble Court be pleased to invoke the powers vested in it under Article 227 of the Constitution of India and Section 482 of the Cr.P.C.,
and be pleased to call for the records and proceedings in CCF No.4100562/SS/15 pending on the files of Ld. M. M. 41st Court, Shindewadi, Dadar,",
Mumbai and upon ascertaining the legality and proopriety thereof be pleased to quash and set aside CC No.4100562/SS/15 pending on the files of Ld.,
M. M. 41st Court, Shindewaid, Dadar, Mumbaiâ€",
The learned counsel appearing for the Petitioner Mr. Samir Vaidya submits that the Assistant Engineer (B&F), ‘A’ Ward, Mumbai Municipal",
Corporation was not authorized to issue notice inasmuch as the powers under the Mumbai Municipal Corporation are vested with the Commissioner.,
He submits that unless the powers vested with the Commissioner are delegated by the Commissioner to the Deputy Commissioner and in turn by the,
Deputy Commissioner to the said Engineer, the notice issued to the Petitioner is not legally sustainable. In support of the aforesaid contention, the",
learned counsel for the Petitioner has placed reliance upon the observations made by this Court (Coram : Karnik D.G., His Lordship then was) in the",
matter of Vasant S Naik v/ s. Municipal Corporation of Greater Mumbai & Anr. 1 in particular paragraph 10 on-wards. It is submitted that on the,
aforesaid ground alone this Petition deserves to be allowed. The learned counsel for the Petitioner further drew this Court’s attention to the,
contents of the notice and submitted that in the light of the provisions of Section 381 of the Mumbai Municipal Corporation Act (for short “the said,
Actâ€), none of the grounds mentioned in the said notice can be sustainable. It is further submitted that the Petitioner has kept wooden box outside of",
his house, and keeping the said wooden box would not cause any nuisance or would not cause collection of water in which mosquitoes breed or are",
likely to breed at the place where the wooden box is kept. The sum and substance of the submissions made by the learned counsel for the Petitioner is,
that, firstly the officer who has issued the notice has not been empowered to issue the said notice, and secondly none of the grounds stated in Section",
381 of the said Act can be made applicable to the case of the Petitioner keeping in view of the fact that the Petitioner has only kept wooden box,
outside of his house.,
Per contra, the learned counsel appearing for Respondent No.1-Municipal Corporation Ms. Prachi Tatake drew this Court’s attention to the",
instructions issued by the Legal Department of Brihanmumbai Mahanagarpalika on 19th January 2015 and submitted that the Junior Engineer is,
authorized to issue such a notice. She further invites this Court’s attention to the accompaniments of the said instructions and submits that even,
the officer of the rank of Assistant Engineer is empowered to issue notice under Section 381 of the said Act. She further invites this Court’s,
attention to the delegation of powers by the Deputy Municipal Commissioner (Zone-I), Municipal Corporation of Brihan Mumbai, authorizing the",
Assistant Engineer (Bldg & Factory) ‘A’ ward to exercise, perform and discharge the powers given to the Deputy Commissioner subject to the",
control and revision of the Commissioner.,
The learned counsel further submits that the reliance placed by the learned counsel for the Petitioner on the the judgment of this Court in the case of,
Vasant Naik (Supra) is misplaced in the facts of the present case, inasmuch as in the said case no specific document was placed on record either",
during trial or before the High Court showing delegation of powers to the authority who issued notice in the facts of the said case to the Petitioner in,
the said case. It is submitted that in the present case, as already submitted, the documents are placed on record showing specific deletion of powers to",
the Assistant Engineer (B&F), ‘A’ ward, Mumbai Municipal Corporation authorizing him to issue notice under Section 381 of the said Act.",
It is submitted that whether the said wooden box which is kept outside the house of Petitioner has caused nuisance or otherwise is the matter for,
consideration during the trial and not at the stage of issuance of notice by the said authority. It is submitted that while exercising extraordinary writ,
jurisdiction or inherent powers under Section 482 of the Criminal Procedure Code, in routine course High Court will not undertake exercise of",
appreciation of disputed question of facts. Therefore the learned counsel for the Respondent No.2 â€" Mumbai Municipal Corporation prays that this,
Petition may be rejected.,
Upon appreciation of rival contentions and perusal of the documents placed on record which make it clear that the powers are delegated to the,
Assistant Engineer (B&F) ‘A†Ward of the Mumbai Municipal Corporation including powers of issuing notice under Section 381 of the said Act.,
In the said context it would be apposite to reproduce Section 381 of the said Act which reads thus :-,
“ 381. Filling in of pools, etc., which are a nuisance [(1) (i) For the purposes of this section a nuisance shall include-----. -",
(a) any pool, ditch, tank, well, pond, quarry-hole, drain, water course or any collection of water; or",
(b) any cistern or other receptacle for water or any article or thing capable of collecting rain water during the monsoon season whether within or,
outside a building; or,
(c) any land on which water accumulates or is likely to accumulate; or,
(d) any premises or any part of any premises occupied, or unoccupied, or under construction, reconstruction or demolition; which in the opinion of the",
Commissioner is, or is likely to become a breeding place of mosquitoes or which is, in any other respect, a nuisance as defined in clause (3) of Section",
3.,
(ii) The Commissioner may, by notice in writing, require the person by whose act, default or sufferance, a nuisance arises, exists or continues, or is",
likely to arise, and the owner, lessee and occupier of the land, building or premises on which the nuisance arises, exists or continues or is likely to arise",
or any one or more of such person, owner, lessee and occupier, to remove, discontinue or abate the nuisance by taking such measures and by",
executing such work in such manner and within such period of time as the Commissioner shall prescribe in such notice.,
(iii) The Commissioner may also by any notice under clause (ii) or by another notice, served on such person, owner, lessee and occupier, or on any",
one or more of them, require them or any one or more of them, to take all steps requisite or necessary to prevent a recurrence of the nuisance and",
may, if he thinks it desirable, specify any work to be executed or measures to be carried out for that purpose, and may serve any such further notice",
notwithstanding that the nuisance may have been abated or removed if he considers that it is likely to recur:,
Provided that if at any time within four months from the date of the service of any such notice, the nuisance recurs through the failure of the person or",
persons upon whom such notice has been served to comply with the requirements contained in such notice, such person or persons shall be liable",
without any further notice to the penalties provided in this Act for offences under this section.,
Section,Nature of powers duties and functions delegated
233,"To inspect and examine all drains, ventilation, shafts and pipes, cess pools of house gullies, water closets, privles, latrines and urinals to
which this section applies.
254,To cause the 2work authorized by this section to be done for the purpose of inspection and examination under Section 25.
255,"To fill in, reinstate and make good as provided in this section.
257,Making requisitions on owners of premises as provided in SubSection (1) for doing work mentioned in Sub-Section (2).
314,"To remove without notice things placed or deposited upon Clause any clause, place or attached or suspended in.
(b),Contravention of Clause (a) or Clause (c) of Sub-Section (1) of Section 313.
322(3),"To remove without notice any building materials or any scaffolding or any temporary erection or any posts, bars, ralls, boards or other
things by way of enclosures which have been deposited or set up in any street, without the permission of authority specified in Sub-Section
(1) or which having been deposited or set up without permission or authority have not been removed within the period specified in the
notice issued under Sub-Section (2).
324
(SubSec.2)",To restore streets or pavements reinstate in Sub-Section (1)this Sections on failure of persons responsible for doing ----
329,To require and secure adoption of measures to protect and enclose dangerous places.
347 (a) B
and C","Prohibiting user of a non-residential buildings or chawl to a residential one and of a residential building or chawl to that of godown,
warehouse, workshop, workplace, factory, stable or motor garage prohibiting making or causing any alternations in an existing building
originally constructed or authorised to be used for human habitation for the purpose of using it or causing it to be used as a godown,
warehouse, workshop, work place, factory, stable or motor garage.
-----,To inspect ------------------ of buildings during erection or work such as description in Section ----- execution.
-------,To require removal ----- or dangerous structure and to temporarily secure etc. or repair etc.
-----,To issue a written notice to stop within the specified period the erection of the work unlawfully carried or commenced upon any premises.
-----,To direct removal or -------- carrying on erection of building or the execution of any such work is described in Section 342
368,"To require owners to provide receptacles of a size for collection of dust, ashes, refuse, rubbish and trade refuse etc.
374,To Inspect buildings or or premises for the purpose of ascertaining the sanitary condition thereof.
375,To require cleansing and lime washing of any building etc.
375A,To require the owners to remove building materials or debris etc accumulated due to house collapsed etc.
377A,"T require the owners of the buildings to abate the nuisance arising from rain, water leading from the roofs of the buildings or to prevent the
recurrence.
377(1),"To require cleansing, cleaning or enclosing any premises overgrown with rank vegetation etc.
381,To require the owners of the building to abate the nuisance arising out of defects.
390(1) (2)
& (3)",Regulation of factories of licenses or written permission given under the Act.
479 (Sub
Sec.5)",To require production of licenses or written permission given under the Act.
488,"To enter into or upon building or land with or without assistants or workmen for inspection, survey or execution of work.
Section,Nature of powers duties and functions delegated
483,Service of Notice by whom to be served or presented
484,Service how to effected on owners of premises and other persons.
485,Service on “owner or occupier†of premises how to be effected.
488,"To enter in to or upon buildings or land with or without assistants or workman for inspection, survey or execution of work.